In Virginia Blogging Case, Client Confidentiality Yields to First Amendment Protection

The Virginia Supreme Court has just issued its opinion in a case involving cutting edge issues arising from the blogging activity of Virginia criminal defense attorney, Mr. Horace Frazier Hunter. The Court upheld the need for disclaimers on blog posts that discuss results in past cases, but also found that the Virginia State Bar’s interpretation of the client confidentiality rule to prevent an attorney from discussing past results, that are publically available, violates the First Amendment. The controversial opinion has already generated a great deal of discussion throughout the legal ethics world.

The Background: On November 8, 2011, the Virginia State Bar disciplined Mr. Hunter for blogging about his cases without client consent and without a disclaimer about outcomes and guarantees. The Virginia State Bar concluded that Mr. Hunter violated Rule 1.6(a) by disseminating client confidences obtained in the course of his professional representation  without client consent and Rules 7.1(a)(4) and 7.2(a)(3) by disseminating case results in advertising without the required disclaimer.

The Circuit Court of the City of Richmond affirmed the Virginia State Bar decision pertaining to the violation of Rules 7.1(a)(4) and 7.2(a)(3), but, based upon First Amendment grounds, dismissed the determination pertaining to Rule 1.6(a) .

The Opinion: The Virginia Supreme Court held that although Hunter’s blog contained several generalized legal posts and discussions about cases that he did not handle, many of his blog posts were about his cases where he received a favorable result and specifically named his law firm and himself as counsel. Therefore, the Virginia Supreme Court found Hunter’s blog to be potentially misleading commercial speech that the Virginia State Bar has a right to regulate by requiring disclaimers.

The Virginia Supreme Court also held that the Virginia State Bar’s interpretation of Rule 1.6 Client Confidentiality violated the First Amendment.  While the Court noted that the Bar may regulate attorney speech if “it poses a substantial likelihood of materially prejudicing a pending case,” the Court held that “[t]o the extent that the information is aired in the public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.” The Court found that Hunter’s blog posts were protected speech because the posts discussed facts that were publically available in cases that had been concluded.